Slaw Practice of LawPipes Outputhttp://pipes.yahoo.com/pipes/pipe.info?_id=3e033b9013f00c74d5e6bdbe83a00bde
Thu, 01 Oct 2015 22:54:34 +0000http://pipes.yahoo.com/pipes/SlawPracticeOfLawhttps://feedburner.google.comIt’s Complicatedhttp://www.slaw.ca/2015/09/30/its-complicated/
<p class="lead">Last week&#8217;s comment by English Supreme Court Justice Lord Sumption that it may take another 50 years to achieve a gender-balanced roster of judges in England brought the issue of gender equality to the front pages. Not content to raise a minor storm, Lord Sumption went on to urge patience:</p>
<blockquote><p>We have got to be very careful not to do things at a speed which will make male candidates feel that the cards are stacked against them. If we do that we will find that male candidates don’t apply in the right numbers. 85 per cent of newly appointed judges </p></blockquote> . . . <a rel="nofollow" target="_blank" href="http://www.slaw.ca/2015/09/30/its-complicated/" class="read-more">[more]</a>http://www.slaw.ca/?p=78559Wed, 30 Sep 2015 14:39:18 +0000Last week’s comment by English Supreme Court Justice Lord Sumption that it may take another 50 years to achieve a gender-balanced roster of judges in England brought the issue of gender equality to the front pages. Not content to raise a minor storm, Lord Sumption went on to urge patience:

We have got to be very careful not to do things at a speed which will make male candidates feel that the cards are stacked against them. If we do that we will find that male candidates don’t apply in the right numbers. 85 per cent of newly appointed judges in France are women because the men stay away. 85 per cent women is just as bad as 85 per cent men.

He pointed to lifestyle choices as the cause for the ongoing imbalance:

The Bar and the solicitors’ profession are incredibly demanding in the hours of work and the working conditions are frankly appalling. There are more women than men who are not prepared to put up with that. As a lifestyle choice, it’s very hard to quarrel with it, but you have to face the consequence which is that the top of the legal profession has fewer women in it than the profession overall does.

“Some critics have claimed that traditional “old boys’ networks” are part of the reason for restricting female progress in the Bar and on the bench. Lord Sumption said, however, that while he obtained his pupillage in the 1970s via a friend of his father, such claims were now “rubbish in both cases”.”

There was as you might expect something of an uproar in response. This piece from The Lawyer took a more measured tone, addressing with hard data, the fallacies and misconceptions contained in Lord Sumption’s argument. The author, Dr. Steven Vaughan concludes:

As such, the evidence suggests that women do not advance in the profession for multiple, complex, interlocking reasons and because of many and varied formal and informal barriers. “Lifestyle choice”, if it is relevant at all (and if it can be called a ‘choice’), is but one tiny part of what is going on.

The key findings should come as no great surprise but remind us that these aren’t issues that matter only to the legal profession:

Women are underrepresented at every level.

Women are not leaving organizations at higher rates than men.

There are signs that women are less likely to advance than men.

Women face obstacles on the path to senior leadership.

The leadership ambition gap persists.

Women experience an uneven playing field.

Gender diversity is not widely believed to be a priority.

Employee programs are abundant, but participation is low.

There is still inequality at home.

Women and men have very different networks.

The Women in the Workplace report concludes with a roadmap to gender equality in the workplace, acknowledging there is no single path but proposing key steps to move in that direction.

I highly recommend taking a look at the data in the report and especially, the steps on the roadmap. This matters to all of us because, as the authors of Women in the Workplace conclude:

We will all benefit from gender equality in the workplace. Companies that leverage the full talents of the population have a competitive advantage. Employees on diverse and inclusive teams put in more efort, stay longer, and demonstrate more commitment. Women and men of all ages benefit from the flexibility to be their best selves at work and at home.

]]>Boost Your Immunity to Stress With the What-Went-Well Exercisehttp://www.slaw.ca/2015/09/30/boost-your-immunity-to-stress-with-the-what-went-well-exercise/
<img src="http://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"><br /><p class="lead">Anne couldn’t sleep. She lay in bed thinking about a mistake she made, the pile of work on her desk, and the infinite number of things that could go wrong.</p>
<p>Sound familiar?</p>
<p>I had a night like that last night, lying awake at two am pondering a variety of worst-case scenarios.</p>
<p>If you find yourself experiencing stress attacks in the middle of the night, you are not alone. Most of us have experienced nights like that, and for a good reason: Our brains have adapted to do two things very well – make predictions, and focus on what could go . . . <a rel="nofollow" target="_blank" href="http://www.slaw.ca/2015/09/30/boost-your-immunity-to-stress-with-the-what-went-well-exercise/" class="read-more">[more]</a></p>http://www.slaw.ca/?p=78307Wed, 30 Sep 2015 11:00:05 +0000

Anne couldn’t sleep. She lay in bed thinking about a mistake she made, the pile of work on her desk, and the infinite number of things that could go wrong.

Sound familiar?

I had a night like that last night, lying awake at two am pondering a variety of worst-case scenarios.

If you find yourself experiencing stress attacks in the middle of the night, you are not alone. Most of us have experienced nights like that, and for a good reason: Our brains have adapted to do two things very well – make predictions, and focus on what could go wrong.

Our brains constantly make predictions about what is going to happen next. If something went wrong once, we are primed to watch for it to happen again.

Jeff Hawkins, founder of the Redwood Centre for Theoretical Neuroscience, explains: “your brain receives patterns from the outside world, stores them as memories and makes predictions by combining what it has seen before and what is happening now.” He adds “prediction is not just one of the things your brain does. It is the primary function of the neo-cortex, the foundation of intelligence.” (On Intelligence)

In tandem with this predictive tendency, we also have a natural bent to focus our attention on what has gone wrong, and what could go wrong. In his book Flourish, founder of the field of Positive Psychology, Dr. Martin Seligman, explains:

“For sound evolutionary reasons, most of us are not nearly as good at dwelling on good events as we are at analyzing bad events. Those of our ancestors who spent a lot of time basking in the sunshine of good events, when they should have been preparing for disaster, did not survive the Ice Age. So to overcome our brains’ catastrophic bent, we need to work on and practice this skill of thinking about what went well. (Flourish)

To reduce your levels of stress and anxiety, and to counteract our mind’s focus on the negative, try the “what-went-well exercise” developed by Seligman:

The what-went-well exercise:

For one week, every night before you go to sleep, set aside a few minutes to write about three things that went well during your day and why those things went well.

It is important to record your reflections either by hand or on a computer, as this will strengthen the effectiveness of the practice.

The three things don’t need to be of great significance. They can be simple occurrences that were positive. For example, Andrew wrote in his journal that a partner he works told him a memo he prepared was very well done.

The next step is to consider for each thing that went well “why did this this happen?” Andrew had written about positive feedback from the partner about a memo. He reflected this happened “because when I was drafting the memo and got stuck on how to approach one difficult point, I met briefly with the partner to discuss the issue and get further clarification.”

Writing about why the positive events in your life happened may seem awkward at first, but it quickly gets easier to do. The research indicates that if you stick with it you will likely experience a drop in your stress levels, and will feel generally happier. What’s more, Seligman reports you will “be addicted to this exercise six months from now.”

As your brain learns that you will be looking each day for examples of what-went-well it will begin to be alert to instances of this throughout the day. This means you will notice more positive occurrences and this in turn helps to reduce stress and increase your overall sense of happiness.

Skeptical? Then I challenge you to test this practice for two weeks to see what results.

I started this morning with a sense of tension and anxiety and so I will be using this practice to get myself back on a positive track.

Do join me in giving it a try and let me know what you discover.

]]>Practice of LawAppeal Judge Rips Trial Judge’s Conduct Towards Self-Represented Defendanthttp://www.slaw.ca/2015/09/29/appeal-judge-rips-trial-judges-conduct-towards-self-represented-defendant/
<p class="lead"><a rel="nofollow" target="_blank" href="http://canlii.ca/t/gl6vp">A Superior Court Judge has tossed out a Small Claims Court judgment</a> for a long list of reasons which primarily involve the inappropriate manner in which the trial judge dealt with the self-represented defendant throughout the course of the trial.</p>
<p>The reasons for granting the appeal span 92 paragraphs. The conduct of the trial judge becomes increasingly unbelievable as the reasons unfold. The decision is worth a read in its entirety and the findings include the following:</p>
<p>The trial judge had not read any of the material before the trial;</p>
<p>The trial judge gave the defendant “two minutes” to explain . . . <a rel="nofollow" target="_blank" href="http://www.slaw.ca/2015/09/29/appeal-judge-rips-trial-judges-conduct-towards-self-represented-defendant/" class="read-more">[more]</a></p>http://www.slaw.ca/?p=78508Tue, 29 Sep 2015 11:00:02 +0000A Superior Court Judge has tossed out a Small Claims Court judgment for a long list of reasons which primarily involve the inappropriate manner in which the trial judge dealt with the self-represented defendant throughout the course of the trial.

The reasons for granting the appeal span 92 paragraphs. The conduct of the trial judge becomes increasingly unbelievable as the reasons unfold. The decision is worth a read in its entirety and the findings include the following:

The trial judge had not read any of the material before the trial;

The trial judge gave the defendant “two minutes” to explain a legitimate motion he was bringing at the outset of trial;

The trial judge repeatedly interrupted during those two minutes “in a most unhelpful manner”;

The trial judge prevented the defendant from making his points and made sarcastic and unhelpful comments;

The trial judge refused to hear the motion at the outset of the trial and then dismissed the motion at the conclusion of the trial without any argument or further discussion on the merits;

When the defendant commenced his cross-examination of one of the plaintiff’s witnesses the “trial judge took over completely”;

The defendant objected when one of the plaintiff’s witnesses went off on an irrelevant tangent. In response to the objection, the witness stated “I’m talking do you mind?” The trial judge failed to consider the objection and instead told the defendant to “be quiet please”;

The son of one of the plaintiff’s witnesses was coaching the witness from the body of the court room. When the defendant objected the trial judge stated “you’ve been interjecting and interrupting far more than anybody else” (although the judge did ultimately caution the son);

The trial judge refused to allow the defendant to tender evidence pertaining to issues that had been properly pleaded;

When the trial judge granted a 45 minute lunch break he advised the defendant to spend the time getting organized. After the lunch break when the defendant made a small error and apologized the trial judge sarcastically stated “it’s a good thing we only gave you 45 minutes to get organized”;

The trial judge allowed the plaintiff’s witnesses to fence with the defendant during his cross-examination of them;

The trial judge treated the defendant in a manner that was “rude and threatening”;

The trial judge demanded that the defendant explain the basis of his defence during the defendant’s cross-examination of a plaintiff witness;

When the defendant asked for a few minutes in the late afternoon to collect his thoughts, the trial judge noted that “I gave you 45 minutes at lunch. It didn’t seem to do much good.”;

The defendant was not permitted by the trial judge to properly provide his evidence on the witness stand. Instead, what transpired is something that “can only be fairly described as a cross examination by the trial judge.”; and

The trial judge allowed the plaintiff to give evidence from the body of the court after the plaintiff had closed its case and while the defendant was in the witness box attempting to present his own evidence.

The appeal judge found that the comments made to the defendant during the course of the trial were “gratuitous, sarcastic and denigrating” and that the conduct of the trial judge “crossed the line”.

Fortunately for the defendant, not only was the judgment set aside, but costs of the appeal were awarded in his favour in the sum of $8,344.75, over $2,000 more than the amount of the judgment that the plaintiff was initially awarded at the conclusion of trial.

]]>ABS in Ontario Killed by the Foul Stench of Protectionismhttp://www.slaw.ca/2015/09/28/abs-in-ontario-killed-by-the-foul-stench-of-protectionism/
<p class="lead">It would be really easy to read last week’s report from the Law Society of Upper Canada’s Working Group on Alternative Business Structures as thoughtful and considered.</p>
<p>Afterall, it has all the hallmarks of a judicial decision &#8211; using all the right words and heck, even using numbered paragraphs; no surprise given that Convocation is over-weighted with litigators, many of whom aspire to be judges themselves.</p>
<p>But if you scratch beneath the surface of the report, one quickly finds that all the judicial language in the world cannot hide what really happened in the LSUC Star Chamber amid the fine . . . <a rel="nofollow" target="_blank" href="http://www.slaw.ca/2015/09/28/abs-in-ontario-killed-by-the-foul-stench-of-protectionism/" class="read-more">[more]</a></p>http://www.slaw.ca/?p=78534Mon, 28 Sep 2015 16:32:50 +0000It would be really easy to read last week’s report from the Law Society of Upper Canada’s Working Group on Alternative Business Structures as thoughtful and considered.

Afterall, it has all the hallmarks of a judicial decision – using all the right words and heck, even using numbered paragraphs; no surprise given that Convocation is over-weighted with litigators, many of whom aspire to be judges themselves.

But if you scratch beneath the surface of the report, one quickly finds that all the judicial language in the world cannot hide what really happened in the LSUC Star Chamber amid the fine dining and clinking of sturdy goblets of Port.

The Working Group determined that in order for it to recommend ABS to Convocation, ABS had to pass the following seven tests:

Access to justice;

Responsive to the public;

Professionalism;

Protection of Solicitor-Client Privilege;

Promote Innovation;

Orderly Transition; and

Efficient and Proportionate

No weighting is assigned to any of these criteria, so we don’t know if the Working Group considered each of these criteria to be equally important or whether some are more important than others.

There are also no metrics within any of these criteria to indicate what a “pass” would look like.

However, it becomes clear from reading the report that ABS had to show itself to be demonstrably better than traditional law firm structures.

In other words, the Working Group granted – without explanation – a presumption in favour of traditional law firms.

Is that fair, logical or even reasonable?

I have written before that an objective and fair review of ABS would only ask one simple question:

Does ABS demonstrably create more mischief than the current structures?

But, let’s take a look at the criteria used by the Working Group.

Accessto Justice – ABS passes yet still fails

The Working Group determined that “…based on the experience to date in other jurisdictions, the likely access to justice impact does not appear to be sufficient to justify majority non-licensee ownership or effective control, for practices generally.”

In other words, the Working Group acknowledges that ABS firms have increased access to justice – just not by a sufficient amount.

Huh?

What is the definition of “sufficient”?

In order for the Working Group to state that A2J is not sufficient, the Working Group must have a benchmark of what would be sufficient.

What is that benchmark?

In order to achieve consistency of decision-making, how can a future Working Group determine that overseas experience has now achieved that benchmark?

Responsiveto the Public – ABS Passes

The Working Group determined – again without any criteria or benchmarks – that ABS passes the vague and undefined, “responsive to the public test.”

Professionalism – ABS Fails

The Working Group has heard concerns from some individuals that external ownership would necessarily emphasize profits over professionalism .… and the Working Group agrees that there is not yet sufficient evidence from other jurisdictions from which to make proper judgments about the effect of public ownership on professionalism. The Working Group is of the same view with respect to the effect of substantial market consolidation.

What is interesting about this decision is that the Working Group has weighed “concerns” raised by Ontario lawyers who have no experience with ABS and very little understanding of ABS, over actual experience in Australia and the UK.

Is it fair, reasonable and logical to weigh the opinions of those with no experience more highly than the actual experience and evidence of other jurisdictions?

The Working Group has no evidence that the “concerns” raised by inexperienced and unknowledgeable Ontario lawyers will actually come to fruition – so how could it reasonably give any weight to those concerns?

How is it that the Working Group demands ABS to provide evidence, while allowing naysayers to merely “issue spot”?

Is this good decision-making?

And what would constitute sufficient evidence?

Surely the Working Group must have a benchmark in order to come to its conclusion. Again, we don’t know.

The Working Group considers that the better course is to wait for further experience to develop in other jurisdictions before attempting to reach conclusions as to the effect of public ownership and consolidation on professionalism.

Again the Working Group does not state how long we should wait and what experience it is looking for in order to change its mind.

ProtectionofSolicitor-ClientPrivilege – ABS Passes

In a most bizarre turn of events, the Working Group has come up with a criteria that Solicitor-Client Privilege might be compromised by ABS. I’ve been studying ABS for some time and I must confess that this attack on ABS came out of left field for me.

In any event the Working Group confirms that it has no concerns over this.

PromoteInnovation – ABS Passes, yet still Fails

AlthoughABSsappeartobe innovating more than their non-ABS counterparts, [emphasis added] the Working Group is of the view that it is too early to determine whether the levels of innovation taking place in England and Wales support a shift to majority or controlling non-licensee ownership of traditional law firms in Ontario.

Why must ABS firms be proven to be more innovative than traditional firms?

Isn’t the better criteria: ABS firms should be shown to be at least as innovative as traditional firms?

But never mind those points, why doesn’t the Working Group follow its own test?

How can the Working Group acknowledge that ABS firms are more innovative and therefore clearly pass the test – but then state that ABS firms still fail the test because they are not innovative enough?

What on earth does “not innovative enough” mean?

What benchmarking was used?

What would enough innovation look like?

And if it’s too early to tell, then when is the proper time?

Again, in order to ensure consistency of decision-making, how does a future Working Group determine the correct timing and the “enoughness” of the innovation?

OrderlyTransition – ABS Fails

The Working Group agrees that preferred ABS models would need to be introduced in a manner that is mindful of any disruption that a new scheme may cause. Permitting majority non-licensee ownership would represent a major change, requiring significant resources to implement, including legislative reform. The Working Group considers that this criterion militates against implementation of majority or controlling non-licensee ownership levels.

To whom would this be disruptive and costly? Lawyers? The Public?

We don’t know.

How costly? How disruptive? By what measure?

Again, we don’t know.

But shouldn’t we know whose pocket books and delicate psyches are being protected by the Working Group?

Shouldn’t we know how the disruption and costs were measured?

There is a better question however: is this even a valid consideration?

Is the, “Gosh, it’s just gonna be too hard to do” response something that we should tolerate from a disciplined, thoughtful body that claims to be a pillar of society?

EfficientandProportionateRegulation – ABS Fails.

As described above, the Working Group is concerned that a shift to generally permitting non-licensee majority ownership or control likely creates disproportionate regulatory complexity and risk when weighed against the likely benefits as currently observed through the ABS experiences in Australia and England and Wales to date.

Splitting this criteria from the Orderly Transition criteria above is clearly disingenuous. The two are identical and there is no logical reason to split them into two separate and distinct criteria.

Again the, “Gosh this will create complexity” argument is trotted out without any metrics or explanation. The Working Group also throws in a thin and unsubstantiated cost/benefit analysis to further explain why ABS fails this criteria.

Conclusion

If one adds up the “yeas” and “nays” (as there is no weighting system), we see that, using the Working Group’s math, ABS only passes two out of seven criteria; hence its decision to not move forward.

However, we also see that that math is disingenuous.

ABS actually passes four out of seven criteria, which in an equally weighted framework means that the Working Group should have recommended ABS to Convocation. By its own words, the Working Group acknowledged that ABS passes the A2J test and the Innovation test – just not by an enough.

In all, the Working Group receives a failing grade for methodical, objective and transparent decision-making.

And one can now fully understand why it was democratically-elected governments – not lawyers – that brought ABS to Australia way back in 2001, and to the UK in 2011.

It wasn’t fair and objective decision-making that killed ABS in Ontario – it was the foul stench of protectionism.

]]>A2J: Preventing the Abolition of Law Societies by Curing Their Management Structure Defectshttp://www.slaw.ca/2015/09/25/a2j-preventing-the-abolition-of-law-societies-by-curing-their-management-structure-defects/
<img src="http://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"><br /><p class="lead">1. The Defects of the Management Structure of Law Societies</p>
<p>Law societies in Canada have ignored the unaffordable legal services problem (“the problem”), because of the obsolescence of their management structure. Its major defects are:</p>
<p style="padding-left:30px;">(1) management by part-time amateurs (benchers), whose work is mostly charity&#8211;“amateurs” because they don’t have the expertise necessary for solving difficult problems such as the unaffordability of legal services (and they don’t try to get it);</p>
<p style="padding-left:30px;">(2) an unwillingness to attack the causes of difficult problems such as the unaffordability of legal services because their main duties are to their clients and institutional employers, who . . . <a rel="nofollow" target="_blank" href="http://www.slaw.ca/2015/09/25/a2j-preventing-the-abolition-of-law-societies-by-curing-their-management-structure-defects/" class="read-more">[more]</a></p>http://www.slaw.ca/?p=78039Fri, 25 Sep 2015 11:00:51 +0000

1. The Defects of the Management Structure of Law Societies

Law societies in Canada have ignored the unaffordable legal services problem (“the problem”), because of the obsolescence of their management structure. Its major defects are:

(1) management by part-time amateurs (benchers), whose work is mostly charity–“amateurs” because they don’t have the expertise necessary for solving difficult problems such as the unaffordability of legal services (and they don’t try to get it);

(2) an unwillingness to attack the causes of difficult problems such as the unaffordability of legal services because their main duties are to their clients and institutional employers, who are their sources of income;

(3) a refusal to innovate because benchers have not reached the point whereat the fear of the consequences of not changing is greater than the fear of the consequences of changing (e.g., the fear of the consequences of a failed innovation);

(4) the lack of accountability to the democratic process, i.e., benchers’ main duty is to the public, to make legal services adequately available, but they are elected by lawyers, and accountability to an elected government has not been effective, and in fact is not operative;

(5) the absence of a process for developing continuing expertise for solving such problems, such as a civil service provides to an elected government;

(6) the necessary but unknown qualities of time and trial-and-error effort to solve such problems, conflict with fulfilling the incentives for becoming a bencher, e.g., becoming a judge or obtaining other government appoints, or formally establishing the fact of one’s success and popularity, and giving back to the profession the benefit of one’s years of experience, and being re-elected as a bencher;

(7) a conflict of interest between the law society’s duty to regulate the legal profession so as to make legal services adequately available, and its duty to represent the interests of lawyers, i.e., law societies’ regulatory powers conflict with their representative powers, and being elected by their lawyer-members, benchers deal with the problems and complaints of those who elect them;

(8) the absence of public pressure, i.e., insufficient opportunity and ability of the public to affect the making of law society policy and practice, and, lay benchers are not the professional experts needed to adequately provide for such public in-put and represent the public interest, as they may have been in the 19th century;

(9) the absence of adequate government surveillance as to: (1) the use by law societies of the monopoly over the provision of legal services granted by law, such as the use of that monopoly as a shield against unfavourable economic circumstances; and, (2) surveillance of the performance of duties imposed upon law societies by law, e.g., s. 4.2 of Ontario’s Law Society Act. And so, LSUC’s management of Legal Aid was not what it should have been for the 30 years that it was its manager, from Wednesday, March 29, 1967 to 1998; and,

(10) the absence of pressure from lawyer-members upon their law societies to deal with such problems, due to a lack of knowledge of the causes, and the corresponding failure of law societies to so inform themselves and inform their membership. That lack of understanding was very evident in the campaign literature distributed for LSUC’s bencher election held, April 30, 2015.

The definition of the problem provided by the in-depth analytical literature is: “the majority of the population cannot obtain legal services at a reasonable cost.” The cause: law society conflict of interest and refusal to innovate.

All of the competitive manufacturing of goods and services long ago moved to a support services method of production. For example, the “parts industry” is a huge and sophisticated support service for the automobile manufacturers. And the medical services infrastructure is composed entirely of interdependent support services. Each is highly specialized, and each produces a high volume of its particular specialized service. As a result, no doctor’s office provides all treatments and remedies for all patients, as does each law office for each client.

As a result, the centralized legal research unit LAO LAW, at Legal Aid Ontario (LAO), is a true support service, but CanLII is not. By 1988, LAO LAW was producing legal opinions at a rate of more than 5,000 per year for legal aid lawyers (lawyers in private practice who do legal aid cases). It did that far more efficiently and at lower cost than those lawyers could do for themselves. LAO LAW developed its large market because it helped lawyers make money, and reduced the money LAO paid out for legal research hours claimed. Lawyers were not required to use the service.

Therefore, the failure of law societies to take action against a problem the size and duration of unaffordable legal services, justifies government intervention under the federal government’s “trade and commerce” power of s. 91 of The Constitution Act, 1867. And s. 4.2 of Ontario’s Law Society Act must be accepted as including a duty to maintain the affordability of legal services—a duty that should be given constitutional status based upon a Charter of Rights s. 15 equality rights argument that recognizes, “legal services at reasonable cost” as a constitutional right, based upon the concept that being middle class, or of “middle income,” and unable to obtain legal services at reasonable cost, is a state of one’s condition that is “immutable, or changeable only at unacceptable cost to personal identity,” and to one’s ability to invoke constitutional rights and freedoms, and the rule of law. And Charter arguments need lawyers.

2.0 A National Institute to Compensate for the Defects

To compensate for or cure such defects of management structure, the Federation of Law Societies of Canada should sponsor the creation of a national institute, serving all law societies in Canada. Its purpose would be to develop more cost-efficient methods of providing every legal service, and provide solutions for particularly damaging and difficult problems such as, unaffordable legal services.

But if law societies ignore such advice, intentionally leaving the present problems in place, government intervention would be justified. A democracy should not have to tolerate an unaffordable legal services problem that afflicts the majority of the population. People cannot deal with their legal problems without the help of lawyers because, the law is now too voluminous, complex, often based upon technology that must be understood, and requiring one to cope with the large volumes of electronic records made possible by the great automating power of electronic records technology (being the very technology that has created the prohibitively high cost of electronic discovery proceedings). As a result, if legal advice services were affordable, lawyers would be overwhelmed with work, the profession expanding, and law schools asked to expand their enrollments, instead of the opposites being true.

3. A Support Services Solution

Such government intervention could result in the national institute being given powers for devising and putting in place support services such as LAO LAW. That would have an affect comparable to the recommendations of the Clementi Report of 2004, by Sir David Clementi in the U.K. He reviewed the provision of legal services in England and Wales, concluding that law societies have a regulatory power that conflicts with their representative powers, as to representing the interests of lawyers. He recommended that the power to regulate the legal profession so as to make legal services adequately available, be given to a separate, independent agency. Such an agency would be accountable to the political process, to which law societies in Canada are not because of a lack of government surveillance as to how law societies justify their use of their monopoly over the provision of legal services.

An institute of permanently employed experts could recommend and establish national support services for those parts of the work that law firms cannot do sufficiently cost-efficiently to generate a profit. In contrast, law offices use the case law, statutes and regulations materials provided by CanLII in a “handcraftsmen’s” method of production, without the aid of specialized support services. Cottage industries bear that same limitation. As a result, the unaffordable legal services problem is inevitable.

4. Alternative Legal Services—Cutting Costs by Cutting Competence

The law societies’ response is to support a number of alternatives to the affordable, fully retained lawyer, such alternatives being, among others: clinics of various types; programs for targeted (unbundled) legal services (as distinguished from a full retainer to provide the whole legal service); pro bono charity, for short cases only; paralegal and law student programs; family mediation services; social justice tribunals; court procedure simplification projects; a national self-represented litigants project (the NSRLP); and, arbitration and mediation for alternative dispute resolution. Such programs implement a strategy of “cutting costs by cutting competence,” and have no capacity to make legal services affordable again.

As these alternatives employ an increasing number of lawyers, the fewer will be the lawyers in whose interest it is to solve the problem. As a result, these alternative programs will gradually become permanent i.e., the law societies’ complete answer to the unaffordable legal services problem.

5. Leaving Out the Public and the “Public Interest” from this Evolution in Legal Services Delivery

But such evolution in the provision of legal services leaves out:

(1) an accountability to the democratic process by benchers for the use of their powers and the performance of their duties as created by law;

(2) the population’s views and desires as to this evolution in the use of the legal profession’s monopoly over the provision of legal services to impose a “cutting costs by cutting competence” limitation upon people’s ability to access justice;

(3) the population’s consent to the use of that monopoly for the economic purpose of shielding the legal profession from having to change its method of delivering services so as to be compatible with the economic ability of the population to afford the profession’s legal services; and,

(4) the taxpayers who finance the justice system whereat the legal profession, including benchers, earn an income that is considerably better than the average income of taxpayers, but the majority of those taxpayers cannot have a lawyer who can provide legal advice services at reasonable cost.

6. The Unaffordable Legal Services Problem was Inevitable:

Our law societies don’t develop real solutions for such problems. But in 1978-79, the Ontario Government applied the necessary pressure to LSUC’s Legal Aid Committee, to reduce the “unaffordable” amounts it was allowing to be paid out by Legal Aid for legal research hours billed by lawyers. As a result, LAO LAW happened. It is the legal profession’s best legal research unit.

But it exists in its most poorly resourced part—a social welfare agency providing “poverty law” services. And it has since suffered several cuts in its government funding, and therefore so has LAO LAW. It continues as a true support service but it has had to shift from emphasizing its production of complete legal opinions, to the free downloading of highly specialized memoranda of law, factums, and other materials.

7. Legal Research is not the only Support Service, and only Routine Legal Services Can be Automated

The support services method of production is not limited to legal research products. It can establish support services, and determine where specialized practices of law should be created. And it can continuously monitor developments in other countries. In regard to the changing needs of the public, law society management is passive and not proactive. It doesn’t react until problems are serious, and even then, it is free to choose not to react at all.

Such an institute could provide a single bargaining agency on behalf of all lawyers in Canada, by which to obtain the automation of routine legal services, and not have to endure ownership by a commercial investor to get it, as proposed by the ABS investors. The former provides lawyers with the strongest of bargaining positions; the latter, the weakest. The ABS strategy is to own and enfranchise law firms, without the creation of support services. Such investors are “another mouth to feed,” without the ability to solve the unaffordable legal advice services problem. Commercial investors are in the business of making money, and not in the business of satisfying the, “in the public interest” and social welfare obligations imposed by legislation such as s. 4.2 of Ontario’s Law Society Act. The practice of law is not a business, and business is not the only agency that can make law firms as cost-efficient as they should be and legal services as affordable as the population deserves. Otherwise, the profit duty owed to commercial investors will replace the fiduciary duty owed to clients.

8. Alternative Legal Services and the Angry Taxpayer

Conservative institutions do not change until the fear of the consequences of not changing is greater than the fear of the consequences of changing. Our law societies do not yet fear the consequences of not changing, even though they have no answer for the angry taxpayer who demands to know, via the social media, and news media:

Why can’t I have an affordable lawyer of my own? I pay for the justice system where you lawyers earn a very good living compared to me. But I must use the second best solutions of clinics, and pro bono and targeted legal services, and various forms of self-help. You say you take this “access to justice” problem very seriously. I don’t believe that. If you were serious and ethical, you would be trying to solve the problem. You can’t show me anything that you have done about trying to solve the problem. I can’t have an affordable lawyer of my own because you use your monopoly over legal services to serve yourselves, but not the needs of the public for legal services. Why should I give my respect and tax money to your justice system?

9. CanLII as a True Support Service as a Major Part of the Solution

Beginning in July 1979, LAO LAW avoided using the profession’s handcraftsman’s method of providing legal research services, while CanLII in its present form serves to perpetuate the handcraftsman’s method. But CanLII has the developed national market of lawyers and judges, and LAO LAW has 36 years of know-how and success with which to provide that market with the services necessary for making legal advice services affordable. So, join these advantages. Because of its much greater size and market, CanLII could obtain greater benefits from specialization, scaling-up, and the principles of database management dedicated to maximizing the re-use of finished work-product, than LAO LAW can. “Bigger is better.”

In addition to its client-specific legal opinion services, LAO LAW makes available hundreds of general and specific memoranda, draft factums, and other materials that can be downloaded. Such is the innovative power of a competitive support service. In August, 2013, I sent a detailed paper explaining all of that to CanLII’s Board of Directors, and also to many of LSUC’s benchers; see: “Access to Justice—Canada’s Unaffordable Legal Services—CanLII as the Necessary Support Service” (pdf). That produced nothing.

10. Funding such an Institute

The funding for such an institute would come from the revenue earned by CanLII. It would have a national market of all lawyers—a market without competitors, and a judges’ division as well, feeding off the same ever-growing database of finished work-product. Maximizing the re-use of finished work-product is a key principle of creating the high cost-efficiency of a centralized legal research support service like LAO LAW, accompanied by highly specialized legal materials used, and specialized principles of database management. And there are many university and other institutes connected with and studying the justice system with whom to form agreements, including matters of funding.

The more that people cannot enforce the rule of law for themselves and their families, the less reason there is to obey the law. In other words, corruption begets corruption. So, value the legal health of a community as being as important as its physical and mental health. Then, automation will never replace lawyers. But if a lawyer’s advice remains unaffordable for the majority of the population, we may just do away with ourselves. So, we need better leadership than our law societies provide.

]]>Practice of LawRethinking Risk Managementhttp://www.slaw.ca/2015/09/23/rethinking-risk-management/
<p class="lead">Most <a rel="nofollow" target="_blank" href="http://www.clia.ca/documents/documentsList.cfm">risk management advice</a> is based on how to avoid bad things through taking proactive and preventative steps. For example, use checklists on every file to avoid missing crucial steps. Document the advice you’ve given, particularly if your client isn’t likely to follow it. Use retainer letters to set clear expectations for your clients.</p>
<p>Other advice is based on avoiding risk through knowing when to leave well enough alone. The best is example is the axiom that a lawyer should never sue for fees because that’s a frequent trigger for a legal malpractice claim or law society misconduct complaint.</p>
<p>But . . . <a rel="nofollow" target="_blank" href="http://www.slaw.ca/2015/09/23/rethinking-risk-management/" class="read-more">[more]</a></p>http://www.slaw.ca/?p=78446Wed, 23 Sep 2015 13:25:08 +0000Most risk management advice is based on how to avoid bad things through taking proactive and preventative steps. For example, use checklists on every file to avoid missing crucial steps. Document the advice you’ve given, particularly if your client isn’t likely to follow it. Use retainer letters to set clear expectations for your clients.

Other advice is based on avoiding risk through knowing when to leave well enough alone. The best is example is the axiom that a lawyer should never sue for fees because that’s a frequent trigger for a legal malpractice claim or law society misconduct complaint.

But bad things do happen, even to well-prepared lawyers and not every risk can be managed out of existence. The likelihood is that at some point, even the most risk averse among us will get caught unawares. What do you do then? How will you respond to the event you’ve worked hard to avoid?

I think we have to assume our networks are penetrated — all of us. We have to assume our credit card numbers are compromised — all of us. And we have to build resilience into our systems.

Here’s what I think is missing. Our systems tend to be fragile. We aren’t resilient. We can’t recover. We can’t adapt. We can’t mitigate. We don’t think in those ways. We think in terms of prevention instead of response and recovery. So I think that’s how our thinking needs to change.…Resilience means let’s assume the bad thing has happened and figure out how to survive anyway. Let’s figure out how to recover, how to adapt, how to do business even though. It means we focus less on prevention and more on detection and response — and a lot on response.

His comments have me thinking hard about where best to focus resources dedicated to risk management. Is it important in every circumstance to assume the worst and plan for how to survive it? Or is this only important in the arena he’s talking about, dealing with information and data management where so many systems are vulnerable because they operate outside a lawyer or law firm’s direct control.

It seems to me that as in most things, what’s needed is a balanced approach in which we take proactive steps to avoid what can easily be avoided and at the same time direct significant effort toward preparing for a comprehensive response when disaster does strike, in whatever form.

What do you think?

]]>Futures Past, Present and … Yes, Futurehttp://www.slaw.ca/2015/09/23/futures-past-present-and-yes-future/
<p class="lead">The CBA Futures Initiative made a splash last year with its report on the future of legal services, and we’ve been really pleased to be at the centre of the conversation about what today’s changes will mean for the future of the profession in Canada. Since the report was released we’ve been talking the talk AND walking the walk, creating tools and information resources for members.</p>
<p>Some facts and figures:</p>
<ul>
<li>Futures: Transforming the Delivery of Legal Services in Canada, is required reading on a growing number of law school syllabuses;</li>
<li>The Futures team has reached nearly 3,000 people with its </li></ul> . . . <a rel="nofollow" target="_blank" href="http://www.slaw.ca/2015/09/23/futures-past-present-and-yes-future/" class="read-more">[more]</a>http://www.slaw.ca/?p=78452Wed, 23 Sep 2015 13:25:01 +0000The CBA Futures Initiative made a splash last year with its report on the future of legal services, and we’ve been really pleased to be at the centre of the conversation about what today’s changes will mean for the future of the profession in Canada. Since the report was released we’ve been talking the talk AND walking the walk, creating tools and information resources for members.

Some facts and figures:

Futures: Transforming the Delivery of Legal Services in Canada, is required reading on a growing number of law school syllabuses;

The Futures team has reached nearly 3,000 people with its in-person presentations on the future of legal services;

We’ve produced a number of resources for members since the report was published, and will be rolling out more this fall and into the new year, including a toolkit for young lawyers and new videos and podcasts on our Do Law Differently website;

Online, our monthly #CBAFutureschat reaches an international audience of people active in the Futures discourse, holding lively discussions on topics such as legal education, regulatory reform and business opportunities.

Speaking of Twitterchats, I’ll be hosting the next #cbafutureschat titled Legal Futures: Year One and Onward. I want to talk to you about the value you think the CBA Legal Futures Initiative has brought to the Canadian legal profession; which ideas you liked best (and why) and also which ideas you think need more work. What tools would you like to see to bring the report home to more members of the profession? What should we focus on in Year Two?

Join me on September 28 at noon ET, to join the conversation.

]]>Don’t Let Personal Issues Lead You to Bend the Ruleshttp://www.slaw.ca/2015/09/21/78417/
<p class="lead">At least two of the Law Society of Upper Canada’s discipline decisions in the last few months referenced a lawyer’s “loss of moral compass.” Even honest and well-intentioned lawyers have, when under pressure or when suffering from illness, addiction or a personal crisis, succumbed to the belief that it’s perfectly fine to bend the rules “just this once.”</p>
<p>Unfortunately, bending rules and getting away with it has the effect of weakening a lawyer’s scruples over time – especially when the pressures that led to the first transgression persist. Preserving your integrity will help you steer clear of serious threats to . . . <a rel="nofollow" target="_blank" href="http://www.slaw.ca/2015/09/21/78417/" class="read-more">[more]</a></p>http://www.slaw.ca/?p=78417Mon, 21 Sep 2015 19:24:16 +0000At least two of the Law Society of Upper Canada’s discipline decisions in the last few months referenced a lawyer’s “loss of moral compass.” Even honest and well-intentioned lawyers have, when under pressure or when suffering from illness, addiction or a personal crisis, succumbed to the belief that it’s perfectly fine to bend the rules “just this once.”

Unfortunately, bending rules and getting away with it has the effect of weakening a lawyer’s scruples over time – especially when the pressures that led to the first transgression persist. Preserving your integrity will help you steer clear of serious threats to your career.

Here are a few of the first steps on a path to embarrassment and claims – or even ruin:

“Borrowing” money from a trust account, client, or petty cash

Telling a colleague or client you have completed something that you are still working on (or haven’t begun)

Padding dockets or legal aid billings

Allowing non-lawyers to do legal work without appropriate supervision

Lending out your Teraview® Personal Security Package (PSP)

Exaggerating evidence, credentials, or experience

Misstating the opponent’s position to your client

Taking heavy-handed “inspiration” from others’ written works without attribution

Selective memory

All acts of forgery

Cheque tricks (post-dating, kiting)

Back-dating anything

Billing disbursements before they’re incurred

How can you avoid being the victim of temptation? Learn to recognize the factors – pressure from clients, economic instability, ego, stress – that lawyers typically cite when forced to explain their actions in the wake of a claim or complaint. Know yourself and make an effort to steer clear of the situations that challenge your judgment. For example:

Don’t take on clients who intimidate, bully you, or make you their pawn

Take steps to deal with financial difficulties (financial counselling, debt consolidation, move out of a too-expensive office)

Don’t run off at the mouth. To avoid embellishing facts, be concise. People who talk less are often viewed as more intelligent than people who say more

Never lie about the status of a matter or your progress on it. The initial lie will beget further, more serious lies

Don’t take on more work than you can responsibly accomplish or supervise

When lawyers look back on an act of dishonesty, they can usually identify the turning point when a dangerous decision was made. Often a lawyer lies to avoid a potentially embarrassing situation: having to admit to a client that work is incomplete or that a negotiation or motion turned out badly, or lying to family or colleagues about trouble meeting financial obligations. Lawyers who are perfectionists may be particularly vulnerable to these kinds of lies. Think about how you present yourself to clients, colleagues, and other people in your life. Do you cultivate an air of infallibility?

While it can feel good to be viewed as a superstar, maintaining this image at all costs can lead to slippery-slope behaviour. If, instead of bragging, you encourage clients to form realistic expectations about the outcome of their matters, you will avoid losing face should you encounter problems down the road. Remember, your clients are workers, too: they don’t likely hold their own work up to a standard of perfection. Chances are they also don’t expect perfection from you (and if they do, you’ve taken on the wrong clients). Do your best, but don’t misrepresent your abilities or the strength of a case. You don’t need that kind of pressure.

Finally, remember that lawyers are not the only ones capable of acts of dishonesty. Staff can slip up, too. Pay attention to signs that employees are feeling undue performance pressure, or are facing personal financial challenges. Establish appropriate oversight for office finances, check in with staff regularly about the progress of their work, and strive to build an office culture where it’s comfortable for all workers to ask for help or to take time off to deal with health challenges.

Integrity is a practice, not a fixed trait. You will have dozens of opportunities to exercise your integrity over the course of your legal career. Maintain good judgment and keep your stress under control. Your reputation will reap the benefits.

This article is by Nora Rock, corporate writer at LAWPRO. It originally appeared in the Sept 2015 issue of LAWPRO Magazine. All past issues of LAWPRO Magazine can be found at www.lawpro.ca/magazinearchives

]]>Practice of Law: Practice Management‘La Bâtonnière’ No More After Settlement With Quebec Bar Associationhttp://www.slaw.ca/2015/09/17/la-batonniere-no-more-after-settlement-with-quebec-bar-association/
<p class="lead">The Quebec Bar Association and bencher-elect Lu Chan Khuong have released a joint statement, indicating that Khuong has decided to resign her position and duties. The <a rel="nofollow" target="_blank" href="http://www.barreau.qc.ca/pdf/medias/communiques/20150915-entente.pdf/">joint press release</a>, dated Tuesday, September 15, 2015, announces a settlement agreement of the legal action opposing the board of directors of the Bar Association and Khuong. </p>
<p>For details on what transpired up to this settlement, please read my previous post <a rel="nofollow" target="_blank" href="http://www.slaw.ca/2015/09/10/update-on-the-case-of-the-quebec-bar-association-suspended-bencher/">here</a>.</p>
<p>With assurances that her election platform and policies will be taken into consideration, she states that her decision was made “to preserve this institution, which is more important than the . . . <a rel="nofollow" target="_blank" href="http://www.slaw.ca/2015/09/17/la-batonniere-no-more-after-settlement-with-quebec-bar-association/" class="read-more">[more]</a></p>http://www.slaw.ca/?p=78285Thu, 17 Sep 2015 13:00:17 +0000The Quebec Bar Association and bencher-elect Lu Chan Khuong have released a joint statement, indicating that Khuong has decided to resign her position and duties. The joint press release, dated Tuesday, September 15, 2015, announces a settlement agreement of the legal action opposing the board of directors of the Bar Association and Khuong.

For details on what transpired up to this settlement, please read my previous post here.

With assurances that her election platform and policies will be taken into consideration, she states that her decision was made “to preserve this institution, which is more important than the people who run it.”

Former Chief Justice of the Superior Court, François Rolland, acted as a mediator between the parties and helped them reach the agreement.

Prémont was bâtonnière of Quebec City in 2007-2008, and since June, she’s had the role of administrator for the Quebec City region on the board of directors. So a known figure to the profession with an impressive background.

Following both announcements, many members of the bar took to Twitter to discuss the news. You could see that the decisions did not go well with the members who wanted Khuong back. Others feel that the Bar Association should make an examination of conscience in the role the board played in this whole affair and the platform Khuong wanted to implement.

Others are happy that the “circus” is finally over.

However, there may be more to this story. While the drama at the bar has ended for the time being, I wonder what will become of Khuong? Will we hear more about these incidents of shoplifting that started the whole affair and the later allegations of theft? Will those members who supported Khuong be able to accept the newly announced Bâtonnière? Or will there remain a rift in the bar?

Well I guess not…

Droit Inc. reported that Khoung is intending to release the Simons security video footage. Why? it does not really say except that she considers herself a minority, a woman, and coming from a small law firm, implying discrimination and that the Quebec Bar Association needs to work on diversity on many levels.

I don’t disagree with that statement but what would be the point of releasing the tapes?!

I suspect the members who supported Khoung will be watching closely, and the “circus” may not be over yet!

]]>A Time to Learn: Lawyers and Mental Healthhttp://www.slaw.ca/2015/09/16/a-time-to-learn-lawyers-and-mental-health-2/
<img src="http://www.slaw.ca/wp-content/themes/slaw2012/images/slaw-column.png"><br /><p class="lead">Dealing with mental health issues like depression, stress and anxiety is fraught with age-old taboos, stigmas and obstacles to openness – and none of it gets any easier when your job is to be the calm voice of logic and reason in an argument. It might make good business sense to keep your concerns to yourself, but ignoring the issue – for example, depression, anxiety or stress – won’t make it go away.</p>
<p>They say acknowledging you have a problem is the first step to recovery, but how do you know whether you have the kind of problem that needs . . . <a rel="nofollow" target="_blank" href="http://www.slaw.ca/2015/09/16/a-time-to-learn-lawyers-and-mental-health-2/" class="read-more">[more]</a></p>http://www.slaw.ca/?p=78089Wed, 16 Sep 2015 11:00:51 +0000

Dealing with mental health issues like depression, stress and anxiety is fraught with age-old taboos, stigmas and obstacles to openness – and none of it gets any easier when your job is to be the calm voice of logic and reason in an argument. It might make good business sense to keep your concerns to yourself, but ignoring the issue – for example, depression, anxiety or stress – won’t make it go away.

They say acknowledging you have a problem is the first step to recovery, but how do you know whether you have the kind of problem that needs help? And where do you go for that assistance?

At the CBA Legal Conference in Calgary last month, the CBA, along with its partners the Mood Disorders Society of Canada and Bell Let’s Talk launched an online educational program that will give lawyers, judges and law students resources to help them understand their mental health issues and provide them with the tools they need to begin their recovery. Virtually all law societies in the country provided funding for the project, along with the CBA and its partners.

Mental Health and Wellness in the Legal Profession is a self-directed educational tool that has its roots in a 2013 survey of Canadian lawyers that suggested mental health was a far bigger concern than the profession’s traditional alcohol and addiction issues. While there’s a wealth of information on the internet about mood disorders, it’s hard to tell the good from the bad. Respondents to the survey indicated they wanted access to reliable information about it.

The curriculum is designed to give lawyers solid information about mood disorders, their causes, symptoms, and prevention and treatment options; and offer support and resources for recovery and maintaining wellness. The course also addresses the question of stigma in the context of the legal profession and suggests ways to deal with it. With testimonials from practitioners who’ve been through it and come out the other side, the course will help lawyers identify their own issues – their symptoms and triggers. It will guide them through a self-assessment process and identify next steps to take.

The course’s four modules will deal with identifying problems; discussing the impact of stigma; provide options for intervention; and give resources for taking a proactive approach to wellness.

Lawyers take the course by themselves, and can start or stop at their own convenience. The course, open to all lawyers free of charge, is available on the CBA Wellness (formerly CBA Legal Profession Assistance Conference, or LPAC) website.

— Kim Covert

]]>Practice of LawTalk Claims Prevention With Your Articling Studentshttp://www.slaw.ca/2015/09/14/talk-claims-prevention-with-your-articling-students/
<p class="lead">At this time of year, many firms are welcoming articling students into their offices.</p>
<p>While it’s easy to view these students as a source of extra help, the primary purpose of articling is to provide a valuable apprenticeship to the student, not simply to lighten the lawyer’s load. Today’s law school curriculum has a strongly theoretical focus. Students spend a great deal of time learning to research the law and to “think like lawyers”, and limited time learning about how to operate a law practice.</p>
<p>That’s where articling comes in. As an articling principal, you are charged with teaching students . . . <a rel="nofollow" target="_blank" href="http://www.slaw.ca/2015/09/14/talk-claims-prevention-with-your-articling-students/" class="read-more">[more]</a></p>http://www.slaw.ca/?p=78271Mon, 14 Sep 2015 14:30:44 +0000At this time of year, many firms are welcoming articling students into their offices.

While it’s easy to view these students as a source of extra help, the primary purpose of articling is to provide a valuable apprenticeship to the student, not simply to lighten the lawyer’s load. Today’s law school curriculum has a strongly theoretical focus. Students spend a great deal of time learning to research the law and to “think like lawyers”, and limited time learning about how to operate a law practice.

That’s where articling comes in. As an articling principal, you are charged with teaching students about how legal services are delivered to clients. A good articling experience will see students exposed to various office systems (ticklers, filing systems, searches, docketing and billing, and others) and procedures.

It’s important to learn about these procedures, especially for students who will ultimately end up practicing in sole or small firms. But we suggest that learning about procedures is not sufficient: practicing lawyers should also take the time to explain the rationale behind the systems that support a law office. In other words, students should not only learn, for example, how to docket their time; but also WHY lawyers docket time. Take the time to ensure that your students understand that dockets will potentially serve as evidence in support of a claim for costs, or as evidence in support of a defence to a client’s assessment of the lawyer’s costs.

Similarly, don’t just tell the students that they need to flag certain information so that law firm staff can enter it into the tickler – explain why a tickler system is necessary to ensure the proper management of file deadlines. An important aspect of your students’ apprenticeship is learning how to be a good lawyer who understands malpractice risks and takes active steps to minimize these risks and to prevent claims.

]]>Practice of LawUpdate on the Case of the Quebec Bar Association Suspended Bencherhttp://www.slaw.ca/2015/09/10/update-on-the-case-of-the-quebec-bar-association-suspended-bencher/
<p class="lead">This is an update regarding the Quebec Bar Association’s controversial suspension of its recently elected bencher, Me Lu Chan Khuong (see our past blog posts <a rel="nofollow" target="_blank" href="http://www.slaw.ca/2015/07/09/drama-at-the-quebec-bar-association-bencher-suspended-after-shoplifting-allegations/">here</a> and <a rel="nofollow" target="_blank" href="http://www.slaw.ca/2015/07/30/drama-at-the-quebec-bar-escalates-into-legal-action/">here</a>). To summarize, the bar association’s board of directors suspended Khuong after it went public that in 2014 she had been arrested on suspicion of shoplifting two pairs of jeans at a Simons store in Laval. Khuong sued the bar for $95,000 in damages and filed a safeguard order to be reinstated to her position as president of the bar.</p>
Additional allegations surface
<p>Now, the bar has countered with its own lawsuit . . . <a rel="nofollow" target="_blank" href="http://www.slaw.ca/2015/09/10/update-on-the-case-of-the-quebec-bar-association-suspended-bencher/" class="read-more">[more]</a></p>http://www.slaw.ca/?p=78185Thu, 10 Sep 2015 13:00:10 +0000This is an update regarding the Quebec Bar Association’s controversial suspension of its recently elected bencher, Me Lu Chan Khuong (see our past blog posts here and here). To summarize, the bar association’s board of directors suspended Khuong after it went public that in 2014 she had been arrested on suspicion of shoplifting two pairs of jeans at a Simons store in Laval. Khuong sued the bar for $95,000 in damages and filed a safeguard order to be reinstated to her position as president of the bar.

Additional allegations surface

Now, the bar has countered with its own lawsuit demanding $90,000 and requesting documents from the Simons store. In addition, there are allegations of another shoplifting incident at a second Simons location near Quebec City.

An extraordinary general assembly of the Quebec Bar, requested by 138 members, on the topic of Khuong’s suspension was held on August 24, 2015. There were 991 lawyers out of 25,500 members present.

Majority favours reinstating Khuong, provincial investigation

Three resolutions were brought forth and dealt with at the assembly.

The members requested that Khuong be reinstated in her position as president elect of the Bar Association. About 68.5 percent of the 991 lawyers present reaffirmed their confidence in Khuong and asked that the bar’s board of directors reconsider the decision that led to her suspension.

The present members also voted in favour of demanding the Syndic du Barreau du Québec investigate the leaking of the confidential documents.

The assembly also requested the minister of justice look into the same matter.

The board of directors left the meetings reassuring members that it will seriously consider the outcome of the resolutions.

The court sees things differently

However, in the meantime, on August 28, 2015, Quebec Superior Court Judge Michel Beaupré ruled on Khuong’s safeguard order seeking immediate reinstatement. Judge Beaupré decided it was not in the best interest of the bar association and its members that Khuong be reinstated to her position as president of the bar until the court can examine the whole case fully. In his ruling, Beaupré said that immediately reinstating Khuong, before her case is heard in court, would only create turmoil at the Quebec Bar.

Furthermore, Beaupré suspended the work of the bar association’s governance committee looking into the actions of the board of directors regarding the suspension until the civil case has been heard and judgement rendered.

Amid examinations and other motions, the final hearing on the case should resume October 7, 2015 and last six days.

The board agrees with the court’s recommendation

The board of directors met on August 27 and 31 and decided not to proceed to follow through on the August 24 resolution demanding the reinstatement of Khuong as president because of the pending legal action. However, the board accepted that the Syndic and the Minister of Justice should look into the matter if they so wish.

It seems some lawyers agree with that decision. CBC News announced that four former Quebec premiers, Lucien Bouchard, Bernard Landry, Daniel Johnson and Pierre-Marc Johnson—all lawyers—wrote a letter, ” imploring the Quebec Bar not to reinstate Lu Chan Khuong before the court proceedings are over.” According to the group:

“…reinstating Khuong would undermine the Bar’s credibility and its members’ dignity, and it would imperil the public’s trust in the institution.

Allowing the reinstatement of Khuong, even temporarily, would go against the very ethics and respect for the law that the bar is supposed to espouse.”

Ensuring good and effective functioning

On August 22, we heard in La Presse that the Quebec Minister of Justice has asked l’Office des professions to look into the affairs of the bar association to ensure in the eyes of the public that the drama that currently plagues the bar association will not impede its good and effective functioning. The office has mandated an observer to review the goings on and the board of directors of the bar association is working with him.

It is really a sad state of affairs.

In my opinion, the general assembly turnout may have been extraordinary, but it is not indicative of the voice of all members. I think the silence and non-participation of most members of the bar association speaks louder.

It is remarkable to me that the majority of members of the bar would not recognize the danger of reinstating Khuong as president until the court renders a decision. With so many questions about Khuong’s behaviour, how could anyone, let alone lawyers, trust the judgement and direction of the board until there are answers?

Judge Beaupre’s ruling was wise. Whether or not the board of directors was right to suspend Khuong, it is not in the bar’s best interest to reinstate her as president until the court releases its findings.

]]>The 2015 Pacific Legal Technology Conferencehttp://www.slaw.ca/2015/09/10/the-2015-pacific-legal-technology-conference/
<p class="lead"><img class=" wp-image-78197" src="http://www.slaw.ca/wp-content/uploads/2015/09/2015-pltc-logo-300x102.jpg" alt="2015 pltc logo" width="350" height="119"/></p>
<p>On Friday Oct 2, 2015 in Vancouver, BC, the ninth <a rel="nofollow" target="_blank" href="http://www.pacificlegaltech.com/index.html">Pacific Legal Technology Conference</a> will take place. But it can also take place right in your office. This year 13 sessions will be real-time webcast (the keynote will be recorded and made available for viewing after the conference due to logistical issues) allowing both in person and webinar attendees to fully participate in the conference.</p>
<p><a rel="nofollow" target="_blank" href="http://www.pacificlegaltech.com/speakers.html">28 speakers</a> from Toronto, New York City, Salt Lake City, Alaska and all across BC will speak on such sessions as &#8220;Blending Technology with Strong Advocacy Skills&#8221;, &#8220;Practice Management Tools: There has never been a . . . <a rel="nofollow" target="_blank" href="http://www.slaw.ca/2015/09/10/the-2015-pacific-legal-technology-conference/" class="read-more">[more]</a></p>http://www.slaw.ca/?p=78195Thu, 10 Sep 2015 09:00:36 +0000

On Friday Oct 2, 2015 in Vancouver, BC, the ninth Pacific Legal Technology Conference will take place. But it can also take place right in your office. This year 13 sessions will be real-time webcast (the keynote will be recorded and made available for viewing after the conference due to logistical issues) allowing both in person and webinar attendees to fully participate in the conference.

28 speakers from Toronto, New York City, Salt Lake City, Alaska and all across BC will speak on such sessions as “Blending Technology with Strong Advocacy Skills”, “Practice Management Tools: There has never been a better time”, “Securing Mobile Devices: Laptops, Tablets, Smartphones, USB keys and More”and of course the favourite “All the Gadgets, Sites and More we can Squeeze into 60+ minutes”

One session will be a debate format: “How Tech is Changing the Practice of Law: Watson, AI, Expert Systems and More” and promises to be highly entertaining as well as deeply thoughtful on the future of the profession. Simon Chester of Toronto will face off against Nate Russell of Vancouver in what should be a unique way to explore these emerging issues.

The eight Tracks are focused on specific issues facing lawyers, such as the “Solo and Small Firm Track” (offering for example: ‘No Brainer “Sweet Spot” Tech for Solos and Small Firms’), Front Office Technology: The Lawyer’s Desktop Track (offering for example: “Sharing Documents Securely with Clients, Lawyers and Others”), The Security and Threat Protection Track (offering: “What is an Appropriate Level of Protection and How to Achieve It”) and the Innovation and Advanced Track (offering: “Emerging Canadian Legal Technology”).

Each edition of the PLTC is designed by the Advisory Board building an on-line survey of possible topics and issues and asking past attendees to tell us what they most want to hear about and see. This results in the educational sessions being designed with the attendees needs uppermost. This year the response was overwhelming: Privacy and Security was clearly the #1 issue on everyone’s mind. Accordingly our keynote will be Lincoln Mead, the IT Director of the Utah State Bar and a long-standing ABA TECHSHOW Planning Board Member, acclaimed speaker and expert on Legal IT and Security. His topic will be: Security and Privacy: Don’t be Worried, be Terrified!

There will be a discussion track of 4 sessions that will not be webcast due to their particular format. Here the attendees will be joining our speakers to discuss issues of interest in such sessions as: “Going Beyond the Law Society of BC’s Cloud Checklist”, “Technology and Legal Ethics: What are a lawyer’s ethical obligations in connection with technology? How best can we meet these obligations?” and “The Strategic Reinvention of the Law Firm: People, Processes, Technology and Change”.

At the CLC conference in Calgary this August, Madam Chief Justice Beverley McLachlin made it clear that resisting change is no longer an option. LegalFeeds in writing about her speech, stated:

“We’re part of it, and there’s no escape,” she said, referring to the technological changes making legal information available in other ways and players such as LegalZoom that are growing rapidly.

In her speech, McLachlin focused on the major challenges facing the legal profession while outlining what she sees as new opportunities that provide some optimism for different ways of doing business, particularly for “nimble, tech-savvy lawyers.”

We invite you to join your colleagues across Canada and participate in Canada’s online legal technology conference. Sponsoring organizations this year are: The Law Society of British Columbia, together with the Trial Lawyers Association of BC, the Canadian Bar Association BC Branch, The Alberta Civil Trial Lawyers Association and the Saskatchewan Trial Lawyers Association.

The Sponsor floor is sold out and details of the sponsors can be found here, including our Platinum sponsor, Dye & Durham Corporation. For the benefit of both in person attendees as well as webinar attendees, the last 10 minutes of each session will be allocated to one of the sponsors who will show how their product or service helps address the issues raised by our speakers in their presentations. We are hopeful that this will allow all attendees to benefit in learning about the sponsors and the educational sessions and how they tie in together.

I hope to see you at the Conference and join in with your nimble, tech-savvy colleagues!

-David J. Bilinsky, Chair, The Pacific Legal Technology Conference.

]]>Lawyers Working Well With Others?http://www.slaw.ca/2015/09/09/lawyers-working-well-with-others/
<p class="lead">At the recent <a rel="nofollow" target="_blank" href="http://www.cbalegalconference.org/clc/program/">Canadian Bar Association Legal Conference</a> in Calgary, I had the opportunity to join a panel on the subject of lawyers working effectively with those from other professional backgrounds. The panel focused on the benefits of a cross-disciplinary team approach, arising from <a rel="nofollow" target="_blank" href="http://www.cbafutures.org/CBA/media/mediafiles/PDF/Reports/FuturesExecSum_Recommendations.pdf">the recommendation of the CBA Legal Futures report</a> to permit multi-disciplinary practice arrangements. I opened by pointing out why I think this matters (or ought to matter) to lawyers:</p>
So they’ll be better lawyers (which was the theme of the conference) through greater focus, enhanced skills and a broader knowledge base; and
So that clients will . . . <a rel="nofollow" target="_blank" href="http://www.slaw.ca/2015/09/09/lawyers-working-well-with-others/" class="read-more">[more]</a>http://www.slaw.ca/?p=78178Wed, 09 Sep 2015 13:58:46 +0000At the recent Canadian Bar Association Legal Conference in Calgary, I had the opportunity to join a panel on the subject of lawyers working effectively with those from other professional backgrounds. The panel focused on the benefits of a cross-disciplinary team approach, arising from the recommendation of the CBA Legal Futures report to permit multi-disciplinary practice arrangements. I opened by pointing out why I think this matters (or ought to matter) to lawyers:

So they’ll be better lawyers (which was the theme of the conference) through greater focus, enhanced skills and a broader knowledge base; and

So that clients will be better served through a more person-centred approach and efficiencies of both time and cost.

My experience with this approach was quite different from that of my co-panelists, informed primarily by my background in the non-profit sector. The first experience I had working with another discipline was when I worked with The Law Society of Manitoba carrying on investigations of complaints about lawyers. While lawyers there were the primary complaints investigators, we worked very closely with the Society’s auditors, who are accountants with expertise in trust accounting rules and following audit trails. In that context, investigating claims related to trust accounts in particular, we relied heavily upon their expertise and often worked hand in hand, each providing expertise and learning from the other.

More recently, my cross-discipline team experience has been with Legal Help Centre of Winnipeg (LHC), a pro bono legal clinic that intentionally uses a multi-disciplinary approach to solving legal problems. We do so because we recognize that for many and especially those unable to afford conventional legal services, legal issues don’t typically arise in a vacuum.

At LHC, lawyers, articling students and law students work in a team approach with students from other professional and educational backgrounds. The primary partners are from social work but we also incorporate students from Criminal Justice, Human Rights and Conflict Resolution programs.

There are ongoing challenges with this approach, some of which were anticipated from the outset. For example, different professions have differing ethical and legal obligations re: confidentiality. A specific challenge arises with respect to the legal obligation to disclose information about child abuse. Lawyers (and those under our umbrella) are excluded from the obligation under Manitoba’s Child and Family Services Act but social workers are not.

Other challenges related to differences in professional language and culture. In some ways, multi-disciplinary teamwork is a bit of a cross-cultural experience. Lawyers have their own language, as do social workers and other professions. We also each have differing ways to approach both problem-solving and the individuals facing those problems. The words we choose often reflect, or even determine the lens thru which we view the issues we are seeking to address. One of our early issues was just this – what do we call the people we see– are they clients or service users or something else? And do they have cases, files, matters or issues?

These challenges aside, we’ve seen numerous benefits to the multi-disciplinary approach we take at LHC:

Cross-training of students from different disciplines provides all of them with a broader overall knowledge base

This approach provides excellent peer learning opportunities. Conflict resolution skills are not typically taught in law school, but conflict resolution students bring these very useful skills to the Centre. Similarly, social work students have typically received greater and in most cases, better, instruction in interviewing techniques than law students. Students observe and teach one another through working together side by side.

For those who seek our help, we provide a better client service by taking a holistic approach to problem-solving and through reducing the number of external referrals required.

There are also efficiencies that result from this approach, including:

Individuals are more likely to receive the help required when there are fewer steps in obtaining that help;

Faster service is possible with different expertise available in-house; and

It frees up those with different areas of expertise to focus on what they know and do best.

I have found there is a perception that lawyers will lose business and/or income through working in collaborative teams. While it is true that lawyers will give up some work, I have to ask whether this is work lawyers are trained or competent to do? A person with an LL.B. may not be the best person to do the job in any case and sharing the responsibilities with other professionals can therefore reduce the likelihood of making an error and being sued or being the subject of a law society complaint.

Savings on malpractice insurance deductibles and professional misconduct defence costs may therefore offset any resulting income loss. At the same time, lawyers are freed to take on and do other work that they are competent to do.

It is also a misconception that any ethical challenges are insurmountable hurdles to a cross-disciplinary collaboration. I mentioned earlier conflicting duties with respect to confidentiality, as an example. At LHC we addressed this challenge early on and determined that we need to ensure that:

other professionals are included under the umbrella of confidentiality and privilege as providing services to the lawyer (as set out in the Model Code of Professional Conduct, Chapter 3.3); or

other professionals are not part of privileged conversations, through intentionally controlled and limited information sharing.

In either case, the client needs to know where the issues lie and consent to the arrangements in place. At LHC we’ve dealt with this issue explicitly through our Terms of Service, which are reviewed with every client who must sign off on those terms before any help is rendered. In practice, you might include this as part of your discussions around the terms of your retainer agreement.

Other potential issues include conflicting professional duties, such as where the duty to report conflicts with duty to hold information confidential. This could be addressed through informing clients in advance where professionals with conflicting obligations are interviewing in tandem. But if the potential for a disclosure is known to exist, another option is to avoid conducting a joint interview.

There may also be situations where professional goals conflict, such as the lawyer’s duty to zealously advocate for an individual versus a social service provider’s focus on advocating for what is truly best for a whole family.

While some of these circumstances may necessitate strict separation of service provision, this does not mean professionals with different goals and duties should not work together at all. In most circumstances, the risk of ethical conflicts can be managed in advance through development and use of appropriate protocols.

You may say, this is well and good for a pro bono clinic or organization like the Law Society, but how can this work in other settings? In answer, I suggest you take a close look at where it already is happening in other settings and learn from those examples:

In-House counsel have long been working in cross-disciplinary teams, involving information technology professionals, accounting and finance and industry specialists.

In collaborative family law, therapists, financial planners, accountants, social workers and more work in team approach with lawyers to address issues arising from the breakdown of a family relationship. It’s an approach with well-defined and clearly specified “rules” set out in an agreement that the client signs.

Small and solo firm practices often rely heavily upon the services provided by support staff including bookkeepers and paralegals.

In larger firms, you’ll find marketing professionals, accounting and payroll specialists, collections staff, paralegals, researchers and librarians working together to support client files.

In other words, this approach isn’t something new at all. What is new, if anything, is the basis for the approach being advocated. Not only is it based in what works for lawyers (which is how many law firms determine how to deliver services) but a cross-disciplinary team approach has its foundation in the express needs of the clients or those seeking legal help.

Through a client’s eyes, a multi-disciplinary approach can make a lot of sense. Other than the more sophisticated client of legal services, many coming to lawyers have an incomplete understanding of the legal and other issues facing them and requiring resolution. They may not see the lines lawyers are quick to draw between legal issues and financial or social issues. And as already noted, there are a number of efficiencies from a client perspective.

Lawyers providing services through a cross-disciplinary team approach have expanded capabilities and are able to serve and meet the needs of their clients to a greater extent. I’d say it’s almost a no-brainer, once you clear the misconceptions and understand the benefits to all involved.

]]>When Are Witnesses Allowed to Testify via Video-Conference?http://www.slaw.ca/2015/09/08/when-are-witnesses-allowed-to-testify-via-videoconference/
<p class="lead">A <a rel="nofollow" target="_blank" href="http://www.canlii.org/en/on/onsc/doc/2015/2015onsc5385/2015onsc5385.pdf">recent Superior Court decision</a> canvassed the existing law pertaining to permitting witnesses to testify via telephone or video as opposed to in person, and appears to have set out a template of the procedure by which such requests should be made and, if granted, carried out.</p>
<p>A few days before the commencement of trial, the defendants requested that five of their witnesses be permitted to testify via video-conference at the trial. Four of these witnesses live in the U.K. and the other witness lives in the United States. The plaintiff opposed the request which led to argument. The court . . . <a rel="nofollow" target="_blank" href="http://www.slaw.ca/2015/09/08/when-are-witnesses-allowed-to-testify-via-videoconference/" class="read-more">[more]</a></p>http://www.slaw.ca/?p=78127Tue, 08 Sep 2015 11:00:30 +0000A recent Superior Court decision canvassed the existing law pertaining to permitting witnesses to testify via telephone or video as opposed to in person, and appears to have set out a template of the procedure by which such requests should be made and, if granted, carried out.

A few days before the commencement of trial, the defendants requested that five of their witnesses be permitted to testify via video-conference at the trial. Four of these witnesses live in the U.K. and the other witness lives in the United States. The plaintiff opposed the request which led to argument. The court permitted the request and indicated that more detailed reasons would follow. The reasons that were released after the conclusion of trial are interesting to say the least.

The Court noted that Rule 1.08(1) of the Rules of Civil Procedure permits trial evidence by telephone or video conference. If the parties both do not consent to a witness giving evidence by telephone or video-conference then it is open to the court on motion or on its own initiative to make an order directing a telephone or video conference on such terms as are just.

The factors to be considered in exercising this discretion are set out in Rule 1.08(5) and are as follows:

(a) The general principle that evidence and argument should be presented orally in open court;

(b) The importance of the evidence to the determination of the issues in the case;

(c) The effect of the telephone or video conference on the court’s ability to make findings, including determinations about the credibility of witnesses;

(d) The importance in the circumstances of the case of observing the demeanour of a witness;

(e) Whether a party, witness or lawyer for a party is unable to attend because of infirmity, illness or any other reason;

(f) The balance of convenience between the party wishing the telephone or video conference and the party or parties opposing; and

(g) Any other relevant matter.

After setting out the jurisdiction to make such an order and the enumerated factors that are to be considered, the court went on to consider some recent policy considerations and in particular the 2014 Supreme Court of Canada decision of Hryniak v. Mauldin in which the SCC stated that the conventional trial no longer reflects the modern reality and needs to be readjusted.

After referencing the Hyrniak decision, the Superior Court went on to state

“While the general principle that trial evidence should ordinarily be presented orally is clearly and unequivocally articulated by rule 1.08(5)(a) it is appropriate, particularly in light of the culture shift advocated by the Supreme Court of Canada, to take a 21stcentury view of the use of video conferencing (and similar technologies)….

The use of video or similar technologies does not now represent a significant deviation from the general principle favouring oral evidence in court. Such evidence is given orally, under oath or affirmation, and is observable “live” as it would be with the witness present in the courtroom. Questions are asked and answers are given in the usual way. The witness can be closely observed and most if not all of the visual and verbal cues that could be seen if the individual was physically present can be observed on the screen. The evidence is received by the court and heard and understood by counsel and any members of the public who may be present in the courtroom at the time.”

The Court also noted that video evidence is routinely permitted not only in arbitrations and other private forms of dispute resolution, but also in criminal law proceedings and when evidence is given by children.

The Court concluded that “a court should be reluctant to deprive itself and the parties of the opportunity to receive the testimony of a non-party witness through video conferencing.”

Perhaps most interesting is the procedural template that the court laid out. Given that the reasons were written and released after the conclusion of the trial, and the tone in which the template is presented, it appears to me to be an attempt to set out a practical guide for future cases:

Accordingly, the CBC defendants are given leave to adduce trial evidence by video conference or similar technologies in respect of the five witnesses they had identified, subject to the following terms:

(a)All reasonable efforts should first be made to secure the personal attendance of the witness.

(b)Where, despite (a) a witness cannot or will not attend in person to give evidence at trial, not less than three full court days before the day that it is intended to call the witness, the court should be provided, in writing, with the reason(s) for the unavailability of the witness to attend in person. The court reserves the right to determine whether the reasons so given are acceptable, and hence, whether to permit that witness to testify by video conference.

(c)The proposed arrangements for the video conference (or similar) must be satisfactory to the court.

(d)All costs associated with the video conference or similar technologies being used will be borne by the CBC defendants.

(e)No less than two full court days before the witness is scheduled to testify, the parties shall, subject to (f) below, identify and notify to all other parties all documents which he/she/it wishes to have included in a document bundle to be made available, electronically, on paper or both, to the witness. The CBC shall be responsible for assembling the witness bundles and making them available to the witness.

(f)Where a cross-examining party determines that the procedure in (e) may lessen the chances of the witness giving a contemporaneous or unvarnished answer in respect of a particular document, or where the need to refer to a document only arises from the trial testimony of the witness, a document may be put to the witness that is not in the bundle. The CBC shall ensure that arrangements are in place for such additional documents to be readily accessible by the witness (electronically or otherwise).